Extra testing requested, not done
A veteran Canadian Football League (CFL) quarterback was signed and then released by the Toronto Argonauts less than one month later.
Adrian McPherson was signed to the standard CFL contract on July 20, 2016, but on Aug. 27, he was released by the team.
The Canadian Football League Players’ Association grieved the release, arguing McPherson was injured at the time and therefore he should not have been let go because a team could not do so to an injured player.
Instead, it argued McPherson was allowed to “submit to an examination by a neutral physician as agreed upon in accordance with the collective agreement.”
The physician was then given the ultimate responsibility to decide on a player’s fitness and this power “shall be conclusive and binding upon the player and the club,” according to the collective agreement.
On Sept. 12, 2016, McPherson was examined by a doctor, Grant Lum, who wrote in a three-page report that the player was “fit to play skilled football,” and therefore his release was in accordance with the agreement.
The association rejected the doctor’s opinion and it said it wanted further testing to better determine McPherson’s fitness.
The player testified he told the team doctor during his exit interview that he should be examined with “sophisticated medical imaging” to determine whether or not he was injured. But McPherson said Lum rejected this request during the examination.
This refusal constituted a breach of the collective agreement and his release meant he was not able to collect on certain veteran player benefits, as was laid out in the collective agreement.
Arbitrator William Kaplan said the arguments were not valid because both sides agreed that a third-party physician held the final decision-making power.
“The parties have decided that this process is final, binding and not subject to review,” said Kaplan. “There is nothing in any of the facts that indicate the process was deficient, for example, cursory, blind to the evidence, biased, or otherwise materially and fundamentally inconsistent with the agreement of the parties.”
The issue of whether or not the doctor should have ordered more tests is not addressed in the collective agreement, so it cannot be considered in the decision, according to Kaplan.
“Lum’s report is self-evidently thorough and in compliance with the detailed instructions he received. It is not my job, nor either of the parties, to second-guess what tests were ordered, or, arguably, should have been ordered.
"Instead, the parties have agreed upon certain independent physicians and entrusted them given their expertise and professionalism to conduct a ‘fully considered’ examination and to then be bound by the results,” said Kaplan.
“Dissatisfaction with outcome is not a basis for either side to seek arbitral review, especially since the parties have agreed to be bound by the physician’s decision. In this case certainly, and on these facts, that is the end of the matter.”
Reference: The Canadian Football League and the Canadian Football League Players’ Association. William Kaplan — arbitrator. Steven Shamie for the employer. Donald Eady for the employee. Nov. 29, 2016.
